Central America for the improvement of public policies on digital rights

By IPANDETEC

Context

Central America is a region of 7 countries and over 50 million people. Of this population, less than half have Internet access and, looking a little closer, the inequalities and digital gaps are exacerbated in rural, indigenous and LGBTIQ + populations, as well as people with disabilities, among others.

In 2019, Indela selected IPANDETEC to develop the project Building capacities in the Internet ecosystem in Central America with a multisectoral perspective. It created a solid network of Central American participants dedicated to improving laws and public policies related to privacy and cybersecurity which demonstrated some initial improvements in the region.

Due to the pandemic, IPANDETEC had to streamline its processes to achieve its goal. The project suffered delays and adaptations to its completion, transferring the missing training to virtual sessions and events, but never stopping.

Beneficiary countries

The project focused on three Central American countries: Honduras, Guatemala, and El Salvador. These three countries have high levels of cybercrime and the State does not protect the personal data of its citizens. These countries were selected due to the urgent need for public policies regulating the Internet, as well as the lack of trained local actors who could undertake informed advocacy based on standards focused on human rights.

In the case of Guatemala, the personal data protection bill had been halted since the year 2009 and its discussion had not been completed. Similarly, bills had been introduced in Honduras that did not include standards focused on human rights, and therefore threatened the country’s legal stability in terms of cybersecurity. Finally, El Salvador had begun public consultations for discussion of a data protection bill.

Achievements of the project

IPANDETEC’s project provided training to more than 200 people in the participating countries and produced a map of actors working on Internet public policies, including congresspersons, elected authorities, members of the private sector, actors from civil society and human rights activists, academic experts, and members of the technical sector. It also managed to expand the usual ecosystem by bringing together people who were not actively participating at that time in the development of Internet public policies.

One of the major achievements was the creation of training sessions in the various sectors, including some such as academia and government, which are not always included.

Finally, we created three guides for the development of public policies, one for each country, which were shared not only with project participants, but with policymakers for their use in future legislation. The first document, “Step by step for a comprehensive cybersecurity policy | Honduras,” includes Honduran regulation on cybersecurity, as well as standards and practices that must be used when discussing and approving a cybersecurity policy. For El Salvador and Guatemala, the documents focus on personal data protection in each country and the steps necessary to approach the discussion with a focus on human rights.

As an organization, IPANDETEC learned in depth about the importance and effectiveness of the multisectoral mechanism, the great need for this type of project in the region, and the need to increase the representation of women in Internet-related issues in these countries, among other interesting aspects for future development of extensions of this project.

At the end of the project, the picture in the three countries had radically changed. Guatemala is preparing to discuss a personal data protection bill, while in Honduras the proposed cybersecurity law was not passed. Finally, El Salvador saw the veto of its personal data protection bill.

Access to justice for women experiencing digital violence in Mexico does not exist

By Luchadoras

-Access to justice for women experiencing digital violence in Mexico does not exist—that was our primary finding in the investigation Justice pending: Investigations on digital violence in Mexico in limbo,” which we carried out with the support of Indela.

The approval of the “Olimpia Law,” the most visible response promoted by victims’ groups to act against the dissemination of private images without consent, led us at Luchadoras to ask ourselves whether this represented a tangible advancement in the lives of women; these were the lessons we learned.

What’s next for the “Olimpia Law”?

It’s real: Overregulation of the Internet is a threat to the exercise of our freedoms online, a tool that can be used by authoritarians to persecute criticism from organized civil society. However, when talking with women affected by digital violence, we found that criminal reporting is indeed a valid course of action for them. Over 2000 women have reported being victims of digital violence in the last three years.

The crime, which punishes the dissemination of private images without consent, is already a reality throughout the country. At Luchadoras, we believe it is now time to create an ideal standard to harmonize these legal frameworks.

As our investigation shows, the impunity and structural challenges of the justice system in Mexico have prevented the progress of cases of digital violence that have been reported.

During this investigation, conducted jointly with OVIGEM in Puebla, we spoke with women who have experienced digital violence; they confirmed the lack of response and clear information, the mistreatment, and the revictimization by authorities.

We also contemplated the meaning of “access to justice” and discovered other broader concepts with a greater restorative potential than criminal sanction. Putting repair of the damage caused at the center also puts these women at the center.

Women who experience digital violence need to have multiple options for action available besides the criminal route, such as civil, labor, or administrative law. In addition, they need better reporting options on platforms as well as internal mechanisms at institutions such as companies and schools.

Communication is key

Positioning digital violence as a problem on the public agenda has been an arduous task. Today, it is a public issue. The research we have done from civil society and the lobbying for approval of the “Olimipia Law” have contributed to this.

Although the implementation of these reforms is not yet reality, their momentum has a significant social impact: public awareness of this problem. For this, the creation of campaigns and messages that make the issue comprehensible has been key.

Legal language, which is usually complex and often an obstacle for the victims, needs to be made accessible. At Luchadoras, part of our project involved translating the findings of our research into a video with viewer-friendly language.

Being able to name and know how the system works is empowering. Understanding complex problems as local problems that affect us is also another form of justice.

We defend access to information and transparency

For this investigation, we originally made 219 requests for public information to Public Prosecutors and Judicial Branches in the 24 states of the country where reforms related to digital violence had been approved up to the month of February 2020. Only seven states responded to both authorities: Aguascalientes, Mexico City (CDMX), Chihuahua, Jalisco, Nuevo León, Veracruz and Zacatecas; this allowed us to do a more complete analysis of the pathway for access to justice before both bodies.

Thus, we were able to determine that in the last 3 years, 2,143 investigations were opened for the dissemination of private images without consent in Mexico. And 83% are still pending.

Our investigation “Justice pending” would not have been possible if we did not have a legal framework and tools in Mexico for access to information and transparency.

The legal framework and institutions dedicated to transparency represent a major advancement in the demand for government accountability in our country.

Eleven organizations in the fight to position and defend digital rights in Latin America

By Al Sur

The rapid advancement of digital technologies and their widespread use by governments, businesses, and general society has led to much speculation about their effect on human rights. These technologies’ ability to execute mass surveillance, capture personal data, and spread mis- and disinformation requires a comprehensive understanding and concerted response on the part of civil society. This was the motivation for the creation of Al Sur, a consortium of eleven civil society and academic organizations[1] from Latin America working to strengthen human rights in the digital environment. This consortium was one of Indela’s selected projects for 2019, through which it sought to consolidate its institutionality and generate greater capacity for advocacy at the national, regional, and international levels. With Indela’s support, Al Sur organized multiple sessions with specialists, expanding not only the knowledge base but also the network of action to strengthen the digital rights ecosystem. The organizations comprising the consortium received training on “Strategies to access information about surveillance practices,” carried out by Luis Fernando Garcia, Director of R3D de México, and “Negotiations surrounding the Second Additional Protocol to the Budapest Convention on Cybercrime,” which strengthened the alliance between Al Sur and the Electronic Frontier Foundation (EFF). Prof. Sean Flynn of American University also carried out a training session about intellectual property and copyright during the pandemic, which offered the opportunity to review the regulatory market of the entire region. Building a regional agenda Al Sur developed three research reports through this project not only as a strategy to promote a proactive regional agenda, but also to allow other organizations to join and work with the consortium:

  1. Gender-based political violence on the Internet. Gender-based political violence, from a broad framework of diversity, encompasses violence related to political rights, which become aggressive manifestations that undermine the voices of women and LGBT+ persons. In this sense, the report provides a regional perspective, resulting in criteria and recommendations for electoral justice systems, online platforms, political organizations, and civil society.
  2. Mirando Al Sur. Towards new regional consensus on intermediary liability and content moderation on the internet. This document examines comparative debate and maps the legal discussion and self-regulation at a regional and international level, to finally address specific proposals and principles of the region.
  3. A Human Rights Legal Framework for Communications Surveillance in Latin America. This analysis of the situation in Argentina, Brazil, Chile, Colombia, Mexico, Panama, Paraguay and Peru addresses regional debates and research to maintain a legal framework that respects the rights of individuals, guarantees their practice and has effective control and surveillance mechanisms allowing restitution of rights to be demanded and serving as a democratic control of the broad powers of the States in this matter.

As a consortium, Al Sur is also interested in understanding and generating a stronger relationship with regional and international interconnection spaces. To better position themselves in various international forums, they are working on mapping and exchanging best practices, generating research, and holding meetings and consultations with specialists. Al Sur analyzed the United Nations Organizations (UNO) System, the Organization of American States (OAS), and other international bodies, and through this analysis compiled a document—currently under review—whose publicly available version is being considered by civil society in the region. To further augment their position, Al Sur has also increased its digital presence by launching its webpage in three languages and publishing more content on is blog and Twitter account. The impact of Al Sur’s work in the region has led to invitations to make substantial contributions in high-impact spaces; Twitter invited the Secretary to be part of its Security Council, the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR) asked the organizations of Al Sur to be part of the discussion about misinformation during the pandemic, the consortium was invited by Electronic Frontier Foundation to attend a inter-regional cybersecurity and cybercrime group, and it was represented at the Global Privacy Assembly. In addition, Al Sur created recommendations on important  international reference documents, including the Second Additional Protocol to the Budapest Convention on Cybercrime, the public consultation of the Government of Brazil on regulation of the Marrakesh Treaty, the review of the first version of the draft text of the UNESCO Recommendation on the Ethics of Artificial Intelligence, “General comment No. 25 (202x): children’s rights in relation to the digital environment” of the United Nations Committee on the Rights of the Child, and the call of the Council Working Group on International Internet-related Public Policy Issues (CWG-Internet) of the International Telecommunication Union (ITU). One of the consortium’s most significant milestones is Al Sur’s now expanded capacity to react to international discussions and debates. The research and reports published allow it to anticipate emerging issues and move forward with evidence, positioning itself as a collective, and as such has strengthened its alliances and identified spaces in which it can have a greater impact. Ultimately, the consortium and its collective work have been furthered by the support of Indela. Al Sur is better positioned to think more strategically about its next steps and to offer a more organized space for its members to participate in the collective effort.

[1] Al Sur is comprised of:  Association for Civil Rights (ADC), Center for Studies on Freedom of Expression and Access to Information (CELE), Coding Rights, Derechos Digitales, Karisma Foundation, Hiperderecho, IDEC, Panamanian Institute of Law and New Technologies (IPANDETEC), InternetLab, Network in Defense of Digital Rights (R3D) and TEDIC.

Strengthening Digital Rights in Paraguay: An Initiative from a United Civil Society

By TEDIC

The fight for digital rights to be fully protected in Paraguay is ongoing, but it is important to acknowledge how far we’ve come. Our organization has made great strides and had many successes, and Indela’s support has been key in achieving our objectives.

Comprehensive personal data protection law

The work of TEDIC—and its local and international partners—to drive a robust personal data protection ecosystem in Paraguay began several years ago. Founded by TEDIC along with APADIT, Paraguay Ciberseguro, ISOC- Capítulo Paraguay and Abente Stewart Abogados, we acquired a renewed drive alongside Indela through the strengthening of the Personal Data Coalition in Paraguay.

In partnership with the Science and Technology Commission of the Chamber of Deputies, the Coalition led a series of activities to co-create a comprehensive personal data protection law. We launched a website that allowed for receipt of 103 comments from national and international personal data protection specialists. In addition, representatives of the public and private sector held several meetings to and offered 9 workshops featuring international specialists in the subject.

After an official act of presentation of the preliminary draft for reception of final comments, the Coalition—and the Science and Technology Commission—officially submitted the preliminary draft to the Chamber of Deputies on April 30, 2021.

Legal Clinic on Digital Rights

At TEDIC, we believe it is essential to create training spaces for public and private actors in matters of human rights and technology. Our cooperation with Indela has allowed us to establish and strengthen ties with the Universidad Nacional de Asunción School of Law and to create the country’s first Legal Clinic on Digital Rights.

Through an open call[1], the clinic’s first class of students was formed and we held classes on topics such as privacy and personal data protection, freedom of expression, access to information, electronic voting, gender on the Internet and more. This first experience culminated with the presentation of articles prepared by this student class.

Strategic litigation

The partnership with Indela made it possible to take on a series of strategic litigation actions with a focus on increasing the visibility of problematic situations occurring in the country and contradicting full validity of the rule of law.

In particular, we highlight the importance of the strategic litigation and communication campaign used in the Belén Whittingslow Case. The creation of a web page dedicated to the case, as well as various flyers, videos, and other means of communication, have generated considerable interest among the population. This case will be brought before the Inter-American Court of Human Rights and is in the closing stage.

Additionally, we have initiated litigation questioning the installation of facial recognition cameras in public spaces and an appeal against the refusal to provide public information on its collection of personal data. The electronic ticketing system these technologies use is still new and has generated interest and a series of debates among the public.

Finally, we highlight the major support of the Legal Clinic and the students’ commitment to the successful development of the strategic litigation initiatives filed by TEDIC. We believe that space has been and is crucial for promoting the education of law students from practice.

Antivirus series

The disruption caused by the COVID-19 pandemic forced TEDIC to rethink effective ways to communicate. We created the “Antivirus” series, which includes live webinars in which we discuss issues related to digital rights and digital security strategies. Finally, we held a virtual party at which we presented our new work on technology, human rights, and different actions within the scope of the Indela project. The event was attended by more than 150 people from various countries.

Summary

These accomplishments demonstrate that TEDIC’s work, carried out in partnership with local and international organizations, is always the best way forward.

The creation of the preliminary draft law and the various coordinated activities led to the development of a robust digital rights ecosystem. The ongoing assistance of these people indicates not only the interest acquired by the subject but also the State’s commitment to working for comprehensive legislation with the objective of protecting citizens.

In addition, the strategic litigation made it possible to deepen alliances with specialized local organizations on litigation as well as with academia through the Legal Clinic. We believe there is still much work to be done to consolidate the programmatic area of digital law at the School of Law and the Judiciary. We also emphasize that the strategic litigation work and its dissemination have helped position TEDIC as a leader in this area and make its actions visible in the regional agenda; this is evidenced by our inclusion in international panels and regional campaigns.

We can conclude with certainty that the partnership with Indela was key to supporting and achieving these activities. We still have a long way to go on the road toward a Paraguayan society with full enforcement of digital rights. However, it is important to acknowledge the accomplishments achieved in an uncertain national and global context, and thus gain momentum to move forward.

 

 

[1] A total of 30 applications were received, and 10 students were ultimately selected.

#FreedomNotAvailable: Voices of Artists, Journalists and Protesters Under Threat in the Digital Space

By ARTICLE 19 Mexico and Central America

In a context of already widespread violence to silence the press in the physical environment, Mexico’s journalists now face additional pressure, threats and intimidation forcing them to delete digitally-shared content. Content removal[1] has the potential to silence essential expressions in a democratic society. Voices of artists, journalists and protesters face the risk of being eliminated and illegally erased from the digital space without the guarantees of due process.

The “Defending Freedom of Expression on the Internet: Transparency and Due Process of Online Censorship through Content Removal” project supported by Indela has brought this reality to light and shown the negative effects it has on freedom of expression and the right to information.

The various activities carried out as part of this project have helped some actors of the State publicly acknowledge the commitment to take on higher levels of transparency regarding removal requests made to social media platforms by institutions of the Mexican government. It has also contributed to a demand for social media platforms to include data about which State institutions are making the requests, the type of information they are asking to have removed and the reasons these requests are made, in transparency reports.

Through the #FreedomNotAvailable and #NeitherCensorshipNorPadlocks campaigns, we, along with other organizations, have managed to bring into the public agenda the need to defend freedom of expression from extrajudicial mechanisms like “notice and takedown” or copyright claims to remove content on social media platforms, web pages and web hosts.

Through a partnership with Harvard University’s Cyberlaw Clinic, we developed the white paper Access Denied: How Journalists and Civil Society Can Respond to Content Takedown Notices[2] which describes the impact of the DMCA (Digital Millennium Copyright Act) on journalism and the work of civil society organizations in Latin America. The Karisma Foundation (Colombia), Intervozes (Brazil) and Espacio Público (Venezuela) participated in the creation of this guide.

The results of this project have also allowed ARTICLE 19 to make tools available to civil society to respond to requests for content removal by social network platforms through a series of informative guides: (i) Content removal guide on Twitter policies; (ii) Content removal guide on Facebook community standards; (iii) Introduction to content removal and the (iv) Google content removal guide[3].

The impact of this project must be viewed in light of the #FreedomNotAvailable: Censorship and Content Removal in Mexico[4] report, which reviews the various mechanisms used in the country to remove online content and interfere in the right to freedom of expression and information of journalists and all users of technology.

The report explores how content removal undermines the press and the flow of information and manifests itself through: 1) content moderation policies on digital platforms, which are incompatible with the human right to freedom of expression; 2) threats and harassment of journalists to remove information from their spaces or digital profiles, and 3) content removal requests made to digital platforms—under ambiguous legal assumptions and without following due process or complying with judicial guarantees. It also describes the relationship between various institutions of the Mexican state and digital platforms to ask them to remove or restrict access to content. In this scenario, an information gap prevails, as does a lack of clarity about the legal basis giving the authorities the necessary power to request the removal of online content.

According to transparency reports from Twitter, Facebook and Google, between 2017 and 2020 Mexican authorities made 38 thousand requests for content removal. However, through transparency requests, reporting parties reported only 1697 requests for removal during that same period. With this, we have identified inconsistencies in the information provided by authorities, so we only know 1 in 10 requests made by the Mexican State to digital platforms. That is, for 95.6% of content removal clauses, we have no information, transparency, or accountability.

Indela’s support has been crucial for presenting the results of the investigation and sharing tools to deal with the abuses existing for content removal. Their support has also been vital for the Mexican State, digital platforms and other actors to take on greater commitments to transparency and accountability, as well as protecting the right to freedom of expression and access to information in the digital space.


[1] Content removal is the practice of deleting or restricting the circulation of information online, making use of legal frameworks and private mechanisms that limit its access. It is used illegally and irresponsibly to censor information of public interest that should circulate and remain accessible.

[2]Available at the following link: https://articulo19.org/reclamos-de-derechos-de-autor-son-utilizados-para-eliminar-contenidos-periodisticos-y-de-activistas-en-america-latina/

[3] The four guides are available at: https://seguridadintegral.articulo19.org

[4] Report available at: https://articulo19.org/libertadnodisponible/

Routes of Assistance for Online Gender-Based Violence, After the Law

By Hiperderecho Since 2018, four types of online gender-based violence (OGBV) have been recognized as crimes in Peru under Legislative Decree 1410, including sexual harassment and the distribution of private images without consent. In this context, we set out to determine the available and suitable routes of assistance in the country’s justice system to deal with cases of OGBV and the conditions necessary for complaints to advance through these routes. In addition, we called on five people who, with great generosity and courage, allowed us to follow them through their reporting process and, along with them, discover what happens when a person seeks to report OGBV in Peru.

A year after implementing the project, we discovered that the process of seeking justice for cases of OGBV is not a straight line. Instead, it is a challenging, exhausting, and diverse process in which, despite the laws, routes usually lack transparency and justice is different for each person. Understanding this, we went beyond identifying the applicable regulations and focused on listening and acknowledging the stories of struggle, the perspectives, and the needs of those experiencing this violence. We discovered that women and LGBTQ people who have experienced OGBV face a series of gender, information, socioeconomic, racial, and digital barriers that prevent them from having equal access to an effective complaint process and justice[1].

One of the first achievements of the project was bringing to light the reality of little access to justice. We carried out social network campaigns with strategies like the Mass Tweet using #IReportedOGBV, which trended in Peru thanks to the participation of feminist organizations, young students and people who have experienced OGBV in the country and the region. Through these dialogs, we confirmed that the impunity around all forms of gender-based violence, including online, still exists. Today, we know that OGBV is still normalized, that the justice system delays and fails to respond to the new challenges it presents, and that it is sisterhood and feminist support that acts as the pillar keeping us afloat. We are excited that the strategies being co-created in digital feminist spaces seek precisely to recognize OGBV as real violence and to take care of women and LGBTQ people who face a series of prejudices and obstacles when reporting their cases.

A second achievement was proposing and sharing methodologies to investigate OGBV from a feminist viewpoint and performing a critical analysis that lets us propose specific changes. We have put forth feminist legal methodology as a political and research tool to identify violence, negligence or missing components in the justice system that disproportionately affect women and LGBTQ people experiencing OGBV. This methodology also allows us to mainstream a gender-based approach in understanding the Law and the justice system in which the complaints are handled. By making this proposal visible, we also generated new partnerships with regional organizations, state operators, activist networks and attorney groups; that is, we are starting to collectively build a gender justice model to address cases of online violence that puts the needs of those who experience digital violence above the barriers and prejudices that exist in the justice systems of the country and the region.

Our third achievement was developing a support strategy for investigators and for people who have experienced cases of OGBV, which we call “strategic support.” Through this type of support, we provide legal advice, support in digital security and psycho-legal support to cope with the emotional burden of the complaint. In addition, we advocate for the co-creation of safe spaces for those who face violence to share doubts, feelings, desires, and expectations. As an organization today, we are backing and promoting this proposal as a practical and fundamental strategy in the search for gender justice. To do so, we have developed three practical informational workshops directed at attorneys, social workers, support persons and activists, at which we share all the logistical and emotional resources we use to provide empathetic support and discuss the challenges of providing this support. In addition, we have produced a collaborative self-care guide[2], from the stories of the people who participated in one of the workshops, to create more holistic recommendations from and for people who provide support.

Finally, we highlight a fourth achievement that sometimes goes unnoticed: we managed to bring ourselves together as a research and support team. At the beginning of the project, we did not anticipate or prepare ourselves for the emotional exhaustion of practices such as reading about violence on a daily basis, organizing testimonies discussing the cases, providing support during and outside of working hours, and generating bonds of trust in the team. These were all very emotional processes that changed us as a team and as an organization. Along the way, we questioned ourselves, we got overwhelmed and we hugged each other. Therefore, we also used project resources to receive group psychological support[3], receive holistic healing therapy and, above all, to document what we learned[4]. By sharing this experience with our colleagues in the region, we discovered that we were not the only team that had felt this way, and we reaffirmed that the resources we have must be used to take care of ourselves as well. Only then will be we able take care of others.

Our next step in the “After the Law: Seeking Gender-Sensitive Justice for Women and LGBTIQ+ People Facing Gender-Based Violence Online” project, supported by Indela and the Tinker Foundation, is to keep working from a feminist viewpoint to learn, collaborate and develop proposals, not alone but collectively, that bring us increasingly closer to gender justice for cases of OGBV. Our plan is to continue advocating for effective application of the rules, but also the urgent need to promote awareness, empathy, collective care and support for those who report OGBV. Only this way will we identify the best routes to take care of ourselves and to take care of those who decide to carry out the arduous but courageous process of reporting.

New reality, new 2021 Indela call

2020 was a challenging year. Latin America, like many parts of the world, is facing grave and unprecedented threats to rights and to democracy. The use of information technology, for example, has come to affect aspects of our lives like never before, and responses to the Covid-19 pandemic have exacerbated the deep inequalities that already existed in our societies — from the digital divide in the region, which affected access to knowledge and information, to new and complex security and privacy challenges. 

In response to the pandemic, the public sector has introduced social controls, and put restrictions on rights. Many Latin American countries have adopted technological measures to prevent and reduce the spread of the virus, for example, implementing contact tracing apps. These apps, which have not been shown to reduce contagion of the virus, violate the right to privacy by collecting unnecessary personal data, offer little transparency as to how that data is – and will be – used,  and present serious security concerns. They also increase both corporate and state power in the context of the current crisis, and our post-pandemic future.

In addition, during the first months of 2021, many governments in our region have taken a public position on the regulation of large digital platforms such as Facebook, Google, Twitter. These positions are concerning because they undermine freedom of expression online, and shape public discourse, without consideration of the public’s broader interests.  

While the future is uncertain, this significant and historic moment presents the opportunity to preserve and advance digital rights in Latin America. , Given the current emergency we are facing, Indela (Iniciativa por los Derechos Digitales en Latinoamérica) is launching a new, more flexible open call, intended to support projects that respond to the urgent needs of the digital rights ecosystem in the region.

In particular, Indela’s 2021 Open Call will support projects that protect and advance rights affected by digital technologies, and that are submitted by organizations based in Latin America. We will consider proposals for projects on public campaigns, applied research, and/or public policy advocacy, for funding up to a maximum of US$25,000, that can be implemented within a six-month period. In addition, each project will be eligible for specialized consultancies to strengthen the impact of the project as well as the overall work of the applicant organization. 

At Indela, we are reaffirming our commitment to strengthening digital rights in the region by supporting the organizations that defend them. We believe we must act now to address the specific and urgent challenges facing Latin Americans, by expanding and protecting our digital rights.

The 2021 call will be open from April 15 to May 15.

APPLY HERE

Uruguay: towards a population under surveillance with facial recognition

By DATYSOC

Uruguay is poised to develop a “Facial Identification” database for public safety purposes under the Ministry of the Interior. This system was approved using the National Budget Act as an “omnibus law,” thus preventing proper discussion about the issue due to the tight deadlines for approval of this type of law.

Development of this database will be under the responsibility of the Ministry of the Interior, using the database currently under the control of the National Directorate of Civil Identification, the organization in charge of issuing identification cards. The database will include facial images of adults, first and last names, sex, date of birth, nationality, and identification card number, as well as issue and expiration dates. The Ministry of the Interior has already purchased automated facial recognition software and currently has a system of 8433 cameras distributed in the country’s 19 departments, in addition to private surveillance systems. The national government has admitted that the intended use of this facial identification database is automated surveillance using facial recognition algorithms.

Particularly concerning is the broad discretion given to the Ministry of the Interior as to the possible uses of this facial identification database, since it includes any type of use for public safety purposes covered under the missions of the Organic Police Law. The concept of “public safety” is so broad that it does not define public authorities’ limitations in use of personal data.

What could go wrong?

Several recent studies [1], [2], [3] warn that most commercial facial recognition systems have significant bias and are still immature technology. Biased facial recognition technology is particularly problematic for uses related to public safety because errors could lead to false accusations and unjustified arrests.

But let’s suppose that the facial recognition algorithms work correctly, and the database is managed carefully from a technical point of view by the Ministry of the Interior. That would mean state surveillance systems could identify each individual perfectly. In that case, the question is: do we really want to go there?

The use of this technology entails great risks: it may be used to find and arrest protesters or protest organizers, or it may be used to track people remotely without their knowledge, among other concerning uses. In addition, living in a surveillance society affects people’s privacy and can also affect freedom of expression, movement and assembly, in ways we do not yet suspect. How will facial identification affect the behavior of Uruguayans? Has the impact of the possible social consequences of using biometrics in the public space been analyzed? Is it necessary and proportional?

In Uruguay the topic was included in a Budget Act (omnibus law) with no public discussion, but in other countries legislators have proposed or even approved laws prohibiting the use of facial recognition by the government to surveil its citizens [1] [2] [3] [4] [5] [6], including prohibiting the use of other biometrics technologies such as voice recognition, gait recognition and recognition of other immutable physical characteristics. Several organizations working on human rights and technology issues in Latin America have highlighted problematic cases related to use of facial recognition and have warned about the risks that this technology represents for the population.

In addition, it is important to emphasize that international human rights organizations have warned about the potential risks of abuse and recommend that countries regulate it by law, analyzing the detailed scope of its use, the need and proportionality. In this sense, in the year 2020, renowned tech companies decided to place moratoriums on offering their facial recognition solutions to governments, requesting that their use be regulated by parliamentary procedure.

Warning of civil society

On October 13, 2020, these two articles were approved by the Chamber of Representatives without debate of any kind. When the Budget Act passed to consideration by the Chamber of Senators (during the months of October and November), the DATYSOC team warned about the potential dangers of using automated facial identification for public safety purposes and about the excessive discretion granted to the Ministry of the Interior, managing to establish the issue on the media’s agenda [1] [2] [3] [4] [5] [6] [7]. In turn, along with over 20 organizations from Uruguay and the region, we sent a letter to the Chamber of Senators of Uruguay, asking that these articles be removed from the draft of the Budget Act.

Based on these warnings issued by civil society, several senators took a position in favor of separation of these articles or requested inclusion of a requirement for prior court order to authorize use of these facial identification data for public safety purposes. Unfortunately, due to the little time for discussion that a Budget Act implies, no agreement was reached. These articles, which included a “carte blanche” for the Ministry of the Interior, were approved without amendments by both chambers, preventing the in-depth and necessary parliamentary debate the issue requires.

Our strategy

Having exhausted the options to influence the parliamentary discussion process surrounding the Budget Act and seeking possible pathways to avoid greater harm, we at DATYSOC have decided to press for the inclusion of this issue in the 5th Open Government Action Plan 2021-2025. We are seeking a commitment from the Ministry of the Interior that allows, at minimum, the possibility of an informed debate with the participation of the many interested parties prior to its implementation.

Furthermore, we are closely analyzing the impact of these measures on human rights, seeking the greatest possible transparency in the process and its implementation, to keep the population informed.

Learn more about the issue

Indela is proud to support six new digital rights initiatives in the region

Selected Projects 2020

Digital and physical spaces are increasingly connected. Political and social tensions, the public’s relationship with the state and its use of technology are raising new and complex challenges to digital rights. The ongoing pandemic, and related state responses, are creating further cause for concern: Throughout the region, we are seeing widespread misuse of personal data, limits on expression, lack of information and knowledge being distributed to vulnerable communities, and many other alarming developments.

To support the advancement of digital rights in the region, Indela opened its second open call in 2020. We received 138 proposals from 15 Latin American countries.

Today, the Indela team is pleased to announce the six projects selected for its second funding cycle. We are very proud to support these innovative initiatives, which will work on free and fair copyright reform, reducing online gender based violence, localizing public data protection policies,  and user-centric cybersecurity laws, among others.

These six projects will receive funding for 12 to 18 months, as well as customized support to strengthen the impact of their work.

The final selections from Indela’s 2020 open call, are as follow: 

  1. REMIX: discussing copyright and the Internet,” by Agência Lema and InternetLab, will foster a public conversation about copyright in Brazil, and the need for progressive reforms.
  2. Supporting Victims of Online Gendered Violence” by the Cultivando Género Civil Association, will support women and girls in Aguascalientes, Mexico, who have been targeted by digital violence, to learn about the legal options available to them, and make informed decisions in exercising their rights.
  3. DATYSOC: towards a Comprehensive Digital Rights Agenda in Uruguay,” by DATA Uruguay, will strengthen Uruguay’s digital rights legislative digital rights agenda by advocating for public interest copyright regulation and internet intermediary liability policies.
  4. Multicultural digital rights frameworks for indigenous and afro-descendent communities in Bolivia: comparative analysis and public policy advocacy,” by Asociación Aguayo and Fundación InternetBolivia.org, will work to develop contextualized regulatory frameworks for internet access and personal data protection in selected Bolivian municipalities.
  5. A Multi-sector Initiative for Information Security and Fundamental Rights,” by  Vía Libre Foundation, is a collaboration between public- and private- sector actors to develop policies that safeguard digital assets (including personal data and critical infrastructure) in Argentina. 
  6. Building bridges between Latin America’s digital rights and consumer defense communities,” ​​by the Brazilian Institute for Consumer Defense (IDEC), will coordinate the digital rights work of consumer defense advocates, with the strategies of the region’s digital rights community. In particular the project will focus on personal data protection policies and their enforcement. 

Congratulations to the organizations selected in Indela’s 2020 Open Call!

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Indirect tactics

Ramiro Alvarez Ugarte

The privacy movement has always waged battle in difficult terrain, marked by the objective willingness of citizens to cede their data in exchange for benefits that they perceive as useful. The COVID-19 pandemic poses a new challenge that must be viewed as part of this long history in order to be effectively understood, and I believe that the challenge has never been so great.

Let me begin by presenting the adversary in the best possible light. A massively adopted surveillance technology already exists in society, on top of which an additional layer is being proposed for deployment in exchange for two concrete benefits: slowing the spread of the virus and lifting quarantine measures more efficiently. The promised benefits are significant and should not be quickly cast aside. Fewer deaths and less sustained economic damage appear as desirable objectives in the context of a rather frightening situation that has literally all of us locked up in our homes.

The new layer of surveillance on offer could take different forms. In China, it has manifested as a digital passport accessible via a popular e-wallet system that classifies people according to nebulous criteria. For the West, large companies are promising solutions that are more respectful of citizens’ privacy. Meanwhile, several  governments  have looked for some kind of technological solution to the problem. All these scenarios have their disadvantages: the ones that are specific to Latin America have already been pointed out by local organizations. In this brief space, I would like to draw attention to a structural dimension that I believe should guide us in reacting to this challenge. To do so, I’ll employ the old concept of layers, from the “internet world.”

Indeed, I believe that the best way to approach the newly proposed surveillance is to understand it as “one more layer” that would be deployed over a series of underlying layers. The image is useful because the underlying layers largely define how the top layer operates; they determine what the top one can achieve and what it asks of us in return. That is to say, the new layer of surveillance is deployed on top of an existing infrastructure, on top of specific socioeconomic situations, and, crucially, on top of the operating patterns of democratic institutions, both in terms of decision-making and mechanisms for accountability.

It is this layer of “democratic governance” that I want to focus on, seeing as I sense that the new layer of surveillance being offered to us is more or less inevitable, in part because it already exists: global users of Google Maps already allow access to their location data in return for a richer user experience. Who wouldn’t allow access to their location data in exchange for their neighbors’ survival? This focus asks us, therefore, to make a tactical pivot in order to reduce the damage or influence the decision-making process that would lead (or not lead) to a new layer involving sensitive data and the manifest intention to make it “shareable.” By doing so, we enable other people and/or health authorities to more closely monitor the population during times of quarantine.

The first step in this direction requires assuming that surveillance technologies indeed operate in one way or another in accordance with the function of the underlying layers. Thus, for example, an invasive system of mass surveillance of communications may be questionable in and of itself, but its consequences will simply be different according to whether it’s implemented by a dictatorship or by a democracy. Similarly, a CCTV system can have different consequences if the authority in charge of it is, for instance, accountable on a regular basis to a legislative oversight committee, versus if it has absolute discretion to expand, use, and enhance that system.

The second step is, then, to analyze and study the aspects of democratic governance that will determine the function of the new layer of surveillance and take direct actions specific to them.

•       The personal data infrastructure. What kind of protection exists in our country? Is it effective? Is the current legislation up to date? How do the bodies responsible for protection or enforcement work? In many countries, the answers to these questions are disappointing, but there is also special protection for “sensitive” data. Another issue that needs to be examined is related to existing mechanisms for accountability. Could the judiciary branch, for example, exercise effective control over contagion tracking systems? What about the legislative branch?

•       The reach of the exception. It is fundamental that we assess the extent to which our institutions are capable of creating policies of “exception” and respecting that exceptional character. In my country, for example, rules for exceptional situations have often been created and then normalized. Can we prevent that from happening? On the other hand, it is also important to pay attention to the various instruments that can be used to define the limits of the state of emergency (time limits/expirations, objective criteria such as numbers of cases, etc.). Therefore, it is essential to evaluate the current constitutional mechanisms that allow the state of emergency to be legally “produced” and the controls that regulate these mechanisms.

•       Science. Another possible focus is to partner with epidemiologists, who know that an app could never be the sole tool used to manage a pandemic, a complex equation of which contact tracing is only a small part. For example, everything indicates that without a substantial increase in a society’s testing capacity, a tracking application could yield erroneous results (false positives and negatives). This is a typical tactical approach: focus on the underlying vulnerability of a proposal that is simpler and cheaper, and which surfaces as an alternative intervention when a more complex and effective proposal is too costly.

•       Constitutionality. There is no reason why, upon being confronted with the deployment of technological tools, the least possible invasion of privacy cannot be demanded. In this case, the constitutional arguments that demand there should be limitations on measures that restrict rights, without sacrificing their capacity to meet their objective, should be helpful. The analysis of these limitations should take into account the amount of information collected, the guarantees established, the voluntary nature of monitoring programs, etc. Local constitutional law should be the basis of these indirect strategies, even more so, I believe, than international human rights standards.

•       Transparency. All actions to be taken by governments must be transparent; they should also be designed and implemented for the benefit of citizens, with sufficient political, legal, and social controls. It is likewise essential to consider the ways in which an additional layer of control can be set up, quickly and at no additional cost, and placed on top of the new layer of surveillance, e.g. via workplaces or traffic on public roads, where public authorities or private entities oversee the right of entry. Thus, if a digital passport system is established, what prevents a supermarket from requiring the credential to be displayed before entering? This possibility should lead us to a second and vital issue: the multiple discriminatory impacts that such technologies could have.

Those who have been working on digital rights in Latin America for years will see that what has been said up to this point looks like a hasty repackaging of old challenges. But this is because these challenges are persistent: despite advocacy efforts, increased public awareness, legal changes, and occasional scandals, invasive technologies seem to be advancing at a more rapid pace. COVID-19 presents an even more difficult scenario in which existing models intrude even deeper in exchange for concrete benefits. Never was the offer of those asking us to exchange our privacy for some possible benefit so tempting. It would be unacceptable political innocence not to see the issue from the point of view of the political leaders currently in office, who face an unexpected situation with an impact that, while still uncertain, will be massive. And it would be inept of us not to adjust tactics (and strategies) to rise to the new challenge.

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Ramiro Alvarez Ugarte is an associate professor of constitutional law at Universidad de Buenos Aires and a professor of law and social change at Universidad de Palermo (Buenos Aires). He is currently pursuing a JSD at Columbia Law School. Previously, he worked as a human rights lawyer at the Inter-American Commission on Human Rights (2009-2011) and at Asociación por los Derechos Civiles in Argentina (2011-2014), where he developed its privacy agenda. He holds an LLM from Columbia Law School (2009), where he was both a Harlan Fiske Stone Scholar and Fulbright Visiting Scholar.

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